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Tuesday, February 16, 2016

The Future of the Clean Power Plan: What the Unexpected Supreme Court Vacancy Means for the Rule

By Amelia Schlusser, Staff Attorney

This post is the first in a series exploring the legal challenges against the Clean Power Plan.

The nine Justices of the Supreme Court in 2010. JusticeScalia, pictured bottom row, second from left, passedaway on Saturday, leaving a vacancy on the Court.

On February 9, the U.S. Supreme Court issued a stay for
the Clean Power Plan, EPA’s rule to regulate carbon dioxide emissions from
existing power plants. Under the terms of the Supreme Court’s Order, the rule
cannot go into effect until a final decision is reached in West Virginia v. EPA, which is currently scheduled for oral
argument in the Court of Appeals for the D.C. Circuit on June 2, 2016.

Many media outlets have been quick to label the Court’s stay
as a major blow to the Clean Power Plan. However, the Court’s willingness to
delay the rule’s implementation does not necessarily indicate how the Court
will ultimately rule on the legality of the Clean Power Plan. Moreover, following
the recent loss of Justice Scalia, it is possible that the Court may decline to
review the D.C. Circuit’s decision on the rule entirely.

On January 21, 2016, the D.C. Circuit denied
the petitioner’s request for a stay, holding that the petitioners had “not
satisfied the stringent requirements for a stay pending judicial review.” A few
days later, on January 26, the petitioners filed an application to stay the
rule with the Supreme Court. The Court granted
petitioner’s request for a stay on February 9. Under the Supreme Court’s Order,
the Clean Power Plan is stayed pending the outcome of the D.C. Circuit’s review
of the rule. If a writ of certiorari is sought following the issuance of the
D.C. Circuit’s ruling, the stay on the Clean Power Plan will continue until the
Supreme Court either denies review of the lower court’s ruling, or grants cert
and enters its own judgment on the rule.

Petitioners Arguments
for Putting a Hold on the Clean Power Plan

For the Supreme Court to grant a stay of an agency action,
petitioners normally must show that there is 1) a “reasonable probability” that
four Justices will agree to review the lower court’s decision; 2) a “fair
prospect” that a majority of the Justices would vote to reverse the lower
court’s decision; and 3) if the Court denies a stay, the petitioners will
likely suffer “irreparable harm.”

The petitioners in West
Virginia v. EPA asserted that they met the first two requirements for a
stay because the Clean Power Plan has a wide-ranging impact and because, in the
petitioner’s view, the rule is unlawful. These arguments will be explored further
through later posts in this series.

Petitioners further asserted that absent a stay they would
face “massive and immediate impacts” under the Clean Power Plan. They argued
that many coal-fired power plants would be required to close under the rule,
and that these plant retirements would lead to closures of coal mines, which
would result in job losses in poor, rural communities.

They further argued that the Clean Power Plan would
incentivize billions of dollars of investment in renewable energy, and that
“[s]uch a dramatic reallocation of capital resources” is not within the public
interest. According to the petitioner’s application to the Court, “a
stay would preserve the status quo.”

The Clean Power
Plan’s Future in Light of the Supreme Court’s Stay and the Recent Loss of
Justice Scalia

In early February, five of the Court’s nine Justices
ultimately agreed with the Petitioners’ arguments and granted a stay of the
Clean Power Plan. Justices Scalia, Roberts, Thomas, Alito, and Kennedy all
voted in favor of issuing a stay, while Justices Ginsberg, Breyer, Sotomayor,
and Kagan all voted against the stay.

This division among the Justices is not surprising. The
Court’s four liberal Justices voted against staying the federal emissions
regulation, while the Court’s four conservative Justices voted to stay the rule
pending its judicial review.

In the days following the Court’s stay, it seemed that the legality
of the Clean Power Plan would almost certainly be decided by the Supreme Court.
However, following the death of Justice Scalia on February 13, this outcome
does not seem quite as certain. Under Court
rules, four of the nine Justices must agree to hear a case. If the D.C.
Circuit invalidates the Clean Power Plan, the Court’s four liberal Justices are
likely to vote to hear the case. However, if the lower court upholds the rule, it
is uncertain whether the Court’s four remaining Justices will all vote to hear
the case in the absence of Justice Scalia.

Justices Roberts, Thomas, and Alito would almost certainly vote
to review a D.C. Circuit decision that upholds the Clean Power Plan. However,
depending on the D.C. Circuit’s decision, Justice Kennedy may ultimately decide
to let the lower court’s ruling stand. Given that Justice Kennedy tends to be
the Court’s lone swing voter on politically charged disputes such as climate
change, this outcome is not inconceivable.

Justice Scalia’s passing presents a number of questions
regarding the Court’s potential review of the Clean Power Plan. It is possible
that a new Justice will be confirmed to the Court before the D.C. Circuit
issues a decision in West Virginia v.
EPA, or before the Court hears oral arguments for the case if four Justices
ultimately do vote to review the lower court’s ruling. If President Obama
succeeds in appointing a new Justice to the Court during the remainder of his
term, the new Justice will presumably support upholding the rule. This is also
a likely outcome if the nation elects a Democratic president in November.
However, if the incoming president is a Republican, it is possible that the new
Justice will share Justice Scalia’s views on the legality of the Clean Power
Plan.

While the future make-up of the Court is almost impossible
to predict at this point in time, we can make a few general inferences
regarding the direction the Court might take. First, if a new Justice is not
appointed before the case reaches the Supreme Court, the D.C. Circuit’s ruling
will likely determine the fate of the rule (when the Court issues a 4-4
decision, the lower court’s ruling remains in effect). Second,

if a liberal Justice is appointed to the Court, the Clean
Power Plan will almost certainly be upheld. Finally, if a conservative Justice
is appointed to the Court, the fate of the rule will almost certainly be
determined by Justice Kennedy.

Next week’s post will describe the legal arguments raised in
West Virginia v. EPA, and discuss EPA’s
authority to regulate greenhouse gas emissions from existing sources under the
Clean Air Act. Later posts will explore
recent Supreme Court decisions involving EPA’s efforts to regulate carbon
dioxide emissions under the statute.